Court reinstates death penalty

Kline says 'death penalty is the law of Kansas'

In a long-awaited decision, the U.S. Supreme Court on Monday reversed a 2004 ruling by Kansas' highest court and reinstated the state's death penalty.

The ruling returns six men to death row -- including one convicted murderer from Shawnee County -- after more than a year of uncertainty about their future. It also guarantees at least four other murder cases currently under prosecution or sentencing can go forward with death as the state's maximum punishment.

"The death penalty is the law of Kansas," said Kansas Attorney General Phill Kline, who won a victory in a case that runs heavy with politics.

Death penalty opponents vowed to continue their crusade against the 1994 capital punishment law, which never has been carried out.

"It won't be history's last word on the Kansas death penalty," said Donna Schneweis, coordinator of the Kansas Coalition Against the Death Penalty.

The nation's highest court on Monday said the Kansas Supreme Court erred in its interpretation of the Eighth Amendment, which bans the use of cruel and unusual punishment.

Anthony Bush/The Capital-Journal

Attorney General Phill Kline, center, said the Kansas Supreme Court used "flawed legal reasoning" when it struck down the state's death penalty law. Flanking Kline at a news conference are, from left, assistants Jared Maag and Kris Ailslieger.

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The decision, however, was split 5-4, with new U.S. Supreme Court Justice Samuel Alito apparently breaking a tie in the case. It wasn't clear how his predecessor, Justice Sandra Day O'Connor, would have sided.

The Kansas court had said the state's death penalty, enacted in 1994, weighs too heavily toward death. The U.S. Supreme Court disagreed.

Justice Clarence Thomas, writing for the majority, said the law gives juries ample opportunity to offer life sentences to those convicted of capital crimes.

"The Kansas capital sentencing system is dominated by the presumption that life imprisonment is the appropriate sentence for a capital conviction," Thomas wrote.

'Flawed' reasoning

The legal wrangling focused on the case of former death row inmate Michael Lee Marsh II, who was found guilty of capital murder and sentenced to death by a Wichita jury for the 1996 killing of Marry Ane Pusch and the death of her 1-year-old daughter.

Jason Hunter/The Capital-Journal

Johnson County District Attorney Paul Morrison, who will face Kline in November, said Kline probably argued the case well.

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Pusch was shot, stabbed and doused with lighter fluid before being set on fire in her home. Her daughter, Mary Elizabeth, died as a result of severe burns suffered in the blaze. Marsh confessed to shooting Pusch and abandoning the child.

Seven years after Marsh's conviction, the Kansas Supreme Court in 2004 ordered a new trial because a judge improperly excluded evidence that might have implicated Pusch's husband in the slayings.

Of greater magnitude to the state, however, was the court's 4-3 decision that Kansas' death penalty law was unconstitutional on grounds that the sentencing mechanism was flawed.

The legal issue was whether the U.S. Constitution was violated by a Kansas sentencing process that requires the imposition of the death penalty when the jury, which has already found the defendant guilty of capital murder, determines factors for and against death are equal.

The four dissenting U.S. Supreme Court justices said it wasn't constitutional.

Justice David H. Souter called the system "obtuse by any moral or social measure."

But Justice Thomas shot back.

The court, he wrote, "does not sit as a moral authority. Our precedents do not prohibit the states from authorizing the death penalty, even in our imperfect system. And those precedents do not empower this court to chip away at the states' prerogatives to do so on the grounds the dissent invokes today."

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Those words echoed in Kansas.

"It is the reflection of the will of the people of Kansas," Kline said of the death penalty law. "The people of Kansas have the constitutional right, through their elected representatives, to write just and constitutional laws. That right should not be thwarted by flawed legal reasoning."

He said the ruling also shores up death penalty statutes in several other states, such as Texas.

'Rife with problems'

It isn't clear when the first execution will be carried out in Kansas. Some said it could be years before a case finishes cycling through the appeals process.

Six men currently sit on death row, including Phillip Cheatham, who was sentenced to death in October 2005 in Topeka. Cheatham was found guilty of the shooting death of Annette Roberson in 2003.

Shawnee County District Attorney Robert Hecht said the decision assures "the ultimate penalty" to those who commit "the most heinous, vicious and cruel murders."

But opponents of the death penalty said they aren't finished trying to halt the law altogether. The strategy is to challenge it at every opportunity.

Schneweis, of the Kansas Coalition Against the Death Penalty, said legal questions persist about the use of lethal injections. Other cases are clouded because of attorney conduct.

CAPITAL CRIMES

Capital crimes in Kansas, all of which must be premeditated, include murder of a kidnapping victim, if that person was being held for ransom; killing of a kidnapping victim younger than 14, if that victim was being held because the criminal intended to commit a sex crime; killing of a victim of rape, criminal sodomy or aggravated criminal sodomy; murder for hire or participation in a murder-for-hire scheme; killing of a prison or jail employee or inmate by a prison or jail inmate; murder of a law enforcement officer; and two or more killings at once, or killings "connected together or constituting parts of a common scheme."

KANSAS DEATH PENALTY: A TIMELINE

1965 -- Serial killers James Latham and George York were the last people to be executed in Kansas. They were hanged in a warehouse at the Lansing prison.

1972 -- The U.S. Supreme Court effectively voided 40 death penalty statutes, including the one in Kansas, when it ruled the Georgia law was unconstitutional because it was cruel and unusual punishment.

1994 -- The Legislature adopted the state's current death penalty law. No one has been executed under the measure.

2004 -- The Kansas Supreme Court struck down the death penalty statute, saying it violated the Eighth Amendment of the U.S. Constitution.

June 26, 2006 -- The U.S. Supreme Court reinstated the law, affecting 10 Kansas men who either have been sentenced to die or face possible death sentences.

SOURCE: Capital-Journal archives

SENTENCED TO DIE

Douglas Belt: For the decapitation in June 2002 of Lucille Gallegos, in an abandoned apartment in a Wichita complex where she worked as a housekeeper.

Jonathan and Reginald Carr: For four shooting deaths in Wichita during a nine-day crime spree. A jury concluded they had entered a home and forced two women and three men inside to engage in sexual acts with each other and to withdraw money from ATMs. The women were repeatedly raped before the five friends were taken to the soccer field and shot. One survived.

Phillip Cheatham: For the shooting of Annette Roberson in December 2003 at a Topeka duplex. Prosecutors say he opened fire on the duplex, also killing Gloria Jones.

John E. Robinson Sr.: For the murders of two women whose bodies were found in barrels on property he owned in rural Linn County.

Gavin Scott: For the September 1996 shooting deaths of Doug and Beth Brittain as they slept in their rural Goddard farmhouse.

SOURCES: The Kansas Attorney General's Office, The Associated Press

KANSAS DEFENDANTS WHO FACE POSSIBLE EXECUTION

Gary Kleypas: For the March 1996 killing of Carrie Williams, a Pittsburg State University student, after trying to rape her. The Kansas Supreme Court set aside his death sentence in 2001, and he has been awaiting resentencing in Crawford County.

Michael Lee Marsh II: For the June 1996 deaths of Marry Ane Pusch, 21, and Marry Elizabeth Pusch, who was 19 months old. The mother was shot and stabbed, and her killer set fire to her home, trapping the toddler inside. The toddler later died. Marsh is awaiting a new trial.

Sidney Gleason: A Barton County jury recommended death for the shooting deaths of Miki Martinez and her boyfriend, Darren Wornkey, in February 2004. Prosecutors say Gleason worried that Martinez would tell police about the stabbing and robbery of a 76-year-old man. A judge must review the sentence.

Gregory Moore: On trial in Harvey County for capital murder in the January 2005 shooting death of sheriff's Deputy Kurt Ford, during the storming of Moore's Hesston home during a domestic violence call.

Scott Cheever: Originally charged in state court with capital murder for the January 2005 shooting of Greenwood County Sheriff Matt Samuels, at a home near Virgil where authorities also found a suspected methamphetamine lab. With the state's death penalty law under a cloud, the U.S. attorney's office agreed to prosecute the case and seek the death penalty in federal court, where the case is pending.

Meanwhile, other states in recent years have uncovered problems in the implementation of the death penalty, resulting in the loosening of the doors to some states' death rows. In extreme cases, some death row inmates have seen their convictions overturned.

"The system is rife with problems," said Jeffrey Wicks, of the Kansas Association of Criminal Defense Lawyers. "It's only a matter of time until Kansas joins the ranks of those that have convicted an innocent person, if we've not already done so, and placed them on death row."

Schneweis added: "What does the death penalty get us that life in prison without parole doesn't get us? That really is a critical question that Kansas society will have to deal with."

Bills have been floated in the Legislature to repeal the death penalty. The most recent was a 2005 bill that failed on a preliminary vote in the Senate, 22-18.

'Locked and loaded'

Meanwhile in Kansas, the death penalty case has made waves in the world of politics -- and continues to do so.

Kline takes home a valuable victory as he faces a re-election challenge from Johnson County District Attorney Paul Morrison, a Democrat.

Kline has been criticized repeatedly for his experience as a prosecutor. But he twice has argued in front of the U.S. Supreme Court in securing the future of the death penalty, which is viewed by politicians as a popular state law.

Morrison, a Republican-turned-Democrat, said Kline probably "did a good job arguing." But he said he wouldn't have spent $30,000 hiring outside firms to help him prepare for the case, as Kline did.

"I would have been locked and loaded," Morrison said during a news conference.

Meanwhile, the Kansas Supreme Court has brought itself significant scrutiny in striking down the state's death penalty. Just three years earlier, the court had criticized the same law but declined to strip it from the books.

The case spurred calls for changes to how the high court is selected. None of those efforts have been successful in the Legislature.

"Our criticism was not so much the outcome as that a majority of the court seemed to cast the law aside because they disagreed with the policy," said Senate Majority Leader Derek Schmidt, R-Independence, who proposed requiring Senate confirmation for Kansas Supreme Court nominees.

But he declined to call the court "activist."

"You look at these things case by case, and a lot of us thought the Kansas court was simply wrong on the law," Schmidt said.

The Legislature in 2005 did pass a law that would allow capital murderers to be sentenced to life in prison without the chance of parole.

Chris Moon can be reached at (785) 233-7470 or chris.moon@cjonline.com.